Melissa Ann Rowland stands charged of murder by the State of Utah for
failing to permit a timely cesarean section that could have saved one of
her two babies from in utero death. Her case demonstrates the classic
maternal-fetal conflict: Mrs. Rowland refused to consent to a procedure
that had substantial risks for her and no benefits, but which could have
saved her stillborn child’s life. The charges represent the farthest
extent of state action in favor of fetal rights over maternal autonomy
and proceed against a jumbled background of contradictory precedents.

The Rowland case presents complicated facts. Melissa Rowland has
had a difficult life. Of her six children, she gave two up for adoption,
and had one taken away by child protective services. She has had
convictions for felony larceny and child endangerment of another child,
and been diagnosed with oppositional defiant disorder. Eventually,
she ended up in St. George, Utah, when she and her partner ran out of money.
She became pregnant with his child.

On January 2, 2004, Dr. Sean Esplin advised her to have an emergency
cesarean section based on low amniotic fluid and poor fetal growth and
vital signs. Mrs. Rowland left without having the cesarean.
Various reports alleged that she had declined the cesarean section because
of the scarring it would leave, although Mrs. Rowland has denied this.
Other reports state her objection to having a cesarean section at the hospital
where Dr. Esplin worked. She eventually consented to a cesarean section
on January 13, 2004, delivering one baby daughter and a stillborn male
fetus. The daughter tested positive for cocaine and alcohol.
The Salt Lake County District Attorney’s Office filed murder charged under
a state statute establishing a fetus as a person for the purposes of criminal
prosecution and a theory of conduct evincing a depraved indifference to
the value of human life.

The legal landscape for prosecutions of mothers for injuries to their
children in utero is far from clear. The Supreme Court of the United
States recently refused to hear a mother’s appeal of her South Carolina
state murder conviction for killing her child through the use of cocaine
while pregnant. McKnight v. South Carolina, 124 S. Ct. 101
(2003). The Supreme Court has further declined to hear cases on
South Carolina’s definition of a fetus as a person for the purposes of
prosecution, effectively upholding them (in non-abortion cases).
Whitner v. State, 492 S.E.2d 777 (1997), cert denied, 523
U.S. 1145 (1998). However, an earlier Supreme Court decision overturned
the nonconsensual testing of mothers for drugs in South Carolina hospitals,
holding they had a right to refuse such tests. Ferguson v. City
of Charleston, 532 U.S. 67 (2001). Further, the Supreme Court
has stated unequivocally that a state may not prohibit late term abortion
(so called “partial birth abortion”), when a mother’s health is at stake.
Stenberg v. Carhart, 530 US 914 (2000).

Cases in lower courts have resulted in even more contradictory precedents.
The Illinois Appellate Courts have held that a mother has not only the
right to refuse to have a cesarean section to benefit her child, but also
the right even to refuse a blood transfusion for her fetus’s benefit.
In re Baby Boy Doe, 632 N.E.2d 326 (Ill. App. 1994) (c-section);
In re Fetus Brown, 689 N.E.2d 397 (Ill. App. 1997). Other
state courts have refused to allow prosecutions of women for child endangerment
for taking drugs while pregnant. Reinesto v. Superior Court,
894 P.2d 733 (Ariz. App. 1995); Johnson v. State, 602 So. 2d 1288
(Fla. 1992). Further, a Florida Court found that a pregnant mother
who shot herself could not be held criminally liable (at common law) for
the death of her born alive child (who subsequently died from the injuries
sustained in the shooting). State v. Ashley, 701 So.2d 338
(Fla. 1997). On the other side, a Federal District Court found no
violation of substantive or procedural constitutional rights, nor of any
medical duty of care, when a hospital performed an involuntary cesarean
section under a court order that gave the mother a chance to be heard,
but no right to counsel or other legal rights. Pemberton v. Tallahassee
Memorial Regional Medical Center, Inc., 66 F.Supp.2d 1247 (N.D. Fla.
1999). Additionally, criminal laws prohibiting the killing of a fetus
have been found to be constitutional. Commonwealth v. Lawrence,
536 N.E.2d 571 (Mass. 1989). The Utah Courts have apparently not
addressed the issue. In sum, there is no consistent message coming
out of either the state or federal courts with regard to the liability
of a mother for the death of a child from failing to consent to medical
treatment.

Moving into this uncharted territory, the Utah courts face a thicket
of thorny issues, both factual and political. The facts themselves
are very much in question. Did Mrs. Rowland refuse the c-section
because she did not want the scarring, or because she preferred not to
have the procedure because of the risks to her own life and health.
C-section carries a small, but real, risk of maternal mortality.
Some reports state that Mrs. Rowland simply preferred not to have the child
at the particular hospital she was in on January 2. Her choice to
have the baby at another facility could impact her intent or degree of
recklessness.

The case also raises a number of policy questions. As an initial
matter, if Stenberg v. Carhart stands for the proposition that a
woman’s health is inviolate, even when balanced with her child’s life,
how can that be harmonized with Mrs. Rowland’s prosecution? What
would the impact of allowing forcible c-sections be on pregnant women’s
decisions to go to the hospital in the first place? Should a woman
still have the choice of facility and doctor for her involuntary c-section?
Obstetrician/gynecologists have among the highest listing rates in the
National Practitioner’s Databank, but this information is not available
to the public. Doesn’t a woman facing an involuntary c-section have
an overriding need to know this information?

Perhaps the one certain issue in the case is that Mrs. Rowland is a
very unfortunate woman. Her history and decisions certainly do not
lend themselves to admiration. Back in the ‘60’s, there was a similarly
unfortunate man. He had a long criminal history and was accused of
breaking into a poolroom with the intent to commit a misdemeanor.
He was denied counsel at trial and convicted, despite a surprisingly able
pro se defense. Incensed, he sat down in his prison cell and wrote
an appeal to the United States Supreme Court. From this unlikeliest
of sources, indigents now have the right to appointed counsel recognized
by that Court. Similarly, Mrs. Rowland’s case may have profound consequences
for our conception of the rights of mothers and children, despite its humble
and tragic beginnings.